SESTA/FOSTA imposes accountability on internet service providers, remains misinterpreted by many | TheHill
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May 22, 2018 – 08:15 AM EDT

SESTA/FOSTA imposes accountability on internet service providers, remains misinterpreted by many

BY SHEA M. RHODES, JAMIE PIZZI AND SARAH K. ROBINSON, OPINION CONTRIBUTORS

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In the era of “fake news,” opposing viewpoints are instantaneously categorized as factually inaccurate or transparently biased. This knee-jerk reaction – this lack of critical thinking – is not only intellectually lazy, but a dangerous impetus for the spread of propaganda.

Recently, there has been widespread confusion surrounding SESTA/FOSTA, the new legislation that enhances the Communications Decency Act of 1996 (“CDA”). In short, SESTA/FOSTA closed the loophole that gave blanket immunity to internet service providers who failed to take measures to prevent people from being sold for sex through their websites. Now, rather than trying to meaningfully understand the legal impact of SESTA/FOSTA, self-proclaimed “sex worker advocates” have used the flurry of misinformation to their advantage, perpetuating a false narrative about the law’s supposed effects. The section of the law igniting the most controversy is § 2421A (a): ”Whoever, using a facility or means of interstate or foreign commerce or in or affecting interstate or foreign commerce, owns, manages, or operates an interactive computer service (as such term is defined in defined in section 230(f) the Communications Act of 1934 (47 U.S.C. 230(f))), or conspires or attempts to do so, with the intent to promote or facilitate the prostitution of another person shall be fined under this title, imprisoned for not more than 10 years, or both.”

The very text of § 2421A (a) reveals that the law was intended to apply to websites, and not target the people who post on them. In fact, those who post were never subject to the protections of Section 230(c) of the CDA in the first place. Yet sex worker advocates proclaim SESTA/FOSTA infringes on their ability to sell sex.

Sex workers who post their own commercial sex advertisements were always (and still are) subject to applicable prostitution laws. SESTA/FOSTA did nothing to change this. Instead, the law is fundamentally concerned with websites who intend to facilitate “the prostitution of another person.” Therefore, individual people can continue to use the internet to discuss and advertise commercial sex on various websites, subject to the same applicable prostitution laws.

Simply put, SESTA/FOSTA holds internet service providers accountable for allowing their websites to serve as springboards for sex trafficking. Yet, sex worker rights advocates continue to push an alarmist agenda, mangling what the law actually says. They argue that it will increase the deaths of prostituted people everywhere because it will prevent screening efforts, “force” them “back out” on the street, and prevent them from earning a “livelihood” from this “empowering” career choice. These vain arguments were made bolstered by the fictitious proclamation that “survivors” said so.

Prostitution is incredibly dangerous. The admission by sex workers who claim to use certain websites to screen violent and homicidal sex buyers acknowledges the inherent danger of commercial sex. The passage of SESTA/FOSTA does not make prostitution more dangerous, because unless the websites used for screening were intended to promote or facilitate the prostitution of a person other than the one posting on the site, the screening websites and the users remain in the same legal position as they were prior to the passage of SESTA/FOSTA.

Furthermore, this argument relies on the premise that the information shared about commercial sex online is completely accurate. Meaning, all sex buyers use their real names and provide truthful information during transactions, that the people who sell sex always feel safe to use their identities to critique their customers, and that people who solicit sex via the figurative cover of the internet are inherently more trustworthy than those who do it in person. These presumptions are ludicrous.

Now that websites are no longer immune from legal action for their part in facilitating sex trafficking, some have smartly opted to remove content that could trigger violations. Craigslist promptly deleted its personal ad section;. Backpage.com was shut down by the government in early April following indictment of the site’s founders on criminal charges including facilitating prostitution.

Honestly, the most troubling aspect of the backlash against SESTA/FOSTA by “sex worker advocates” is the declaration that survivors of commercial sexual exploitation share their point of view. The word “survive” means to continue to function or prosper despite a hardship. We don’t call people who retire after successful careers, “survivors,” because the term connotes a more dangerous set of circumstances than those associated with most jobs, no matter how difficult. How does one “survive” something they claim is a relatively safe, meaningful choice? If “sex work” is so empowering, why misappropriate a label reserved for those who have endured trauma and catastrophe?

The most vocal opponents of SESTA/FOSTA have primarily been people with enough privilege to meaningfully choose selling sex as their ideal occupation – not as a necessary means of survival. This privilege permits their voices to be echoed from the parapets of national women’s magazines, providing their arguments with the most traction throughout this public discussion.